The Public Domain featuring the many interests of Walt Disney

A question was posed on the submit page asking for details about the public domain. Speaking generally, the public domain is what contains creative works that are not protected by copyright. The public domain is neither good nor bad. On the one hand, it is a limitation on the power creators are able to wield over their work, and if a person has created something extraordinary that is sold for generations to come, that person’s descendants cannot continue to benefit. A future derivation may also tarnish or insult the original intent of the author. On the other hand, the public domain creates a repository of knowledge and expression that anyone can use and enjoy, a benefit to the rich and poor alike.

Copyright Expiration

The most common way a work enters the public domain is if it’s copyright term expires. The term length of most copyrighted works registered today is the life of the author plus 70 years, the thinking being that the author, her children, and her children’s children is long enough for a family to profit from a work of art before it belongs to the public. If a work of art is the result of a work-for-hire situation, the length is 95 years. Some older works from the 20th century are on slightly different timelines, but generally, if something was made prior to the 1920’s, it’s in the public domain.

The term length was once shorter (originally just 14 years), but has gradually gotten longer. One popular story among copyright attorneys is that the term is extended again and again because Disney wants to protect Mickey Mouse from the public domain. Walt Disney (the man) directed Steamboat Willy and the other original Mickey Mouse cartoons in 1928. Walt Died in 1966, meaning that his works of authorship, the Mickey Mouse cartoons, are currently set for the public domain in 2036 (or 2023 if they are considered work for hire).

Once they enter the public domain, two things will happen: first, the cartoons themselves will become free for anyone to view, edit, or transform without any regard for Disney’s (the company) creative or monetary interests. A pornographic movie based on Steamboat Willy could be made, rival animation companies like Dreamworks could include clips (or the entirety) of the movie in their own work. Probably of greater concern to Disney (which doesn’t make much money off the 1928 films anymore) is the fact that the character of Mickey Mouse would enter the public domain. Anyone who wanted could put copies or derivations of Mickey on clothing, use him in ads or films, or anything else they could think of.

The character design for Epic Mickey will be protected for another 95 years, but the same is not true for Mickey's Steamboat riding cousin.

Certain famous characters can be protected by copyright separate from the stories they inhabit. Mickey Mouse is a famous and distinct character that Disney continues to market in its theme parks and through new video games like Kingdom Hearts and the upcoming Epic Mickey. Every time Disney uses Mickey in a new way, they create a newly protected version of the character. The specific design of Mickey for the new game will not enter the public domain for another 95 years, but the core concept of of Mickey Mouse, once in the public domain, would allow anyone who wanted to the opportunity to create their own Mickey and claim they derived it from the 1928 version, rather than the 2010 version. The same will be true for Batman and Superman. Ironically, comic companies usually argue that famous characters are works-made-for-hire because it gives them more power when the artist in alive. After an artist dies, however, made-for-hire works usually have a shorter term, it will be interesting to see if publishers change their tune when Superman hits the public domain.

Disney isn’t totally against the idea of using stories with expired copyrights, however, as the majority of its animated film library from 1930-2000 is populated with adaptations of pre-existing stories and fairy tales that it put it’s own spin on. In this, Disney actually demonstrates the wonderful side of the public domain. The story of the Little Mermaid is a cautionary moral tale that has implications in our present time as well as when it written by Hans Christian Anderson in 1837. However, if the original telling was all that could ever be told, future generations would be deprived of the opportunity to experience the story in new or relevant ways. Disney will enjoy protection of its specific mermaid for another 100 years or so, but then it too will become a part of the public domain.

Never Meant for Copyright

Sticking with Disney but changing topics, a second class of resident within the public domain are works, expressions, and ideas that were never meant for copyright. Short phrases and facts don’t qualify for protection, the first because it’s just not enough of a labor to create a short phrase and the second because no one thought them up.

Ideas are also not protected by copyright. Ideas may include plot lines or devices, character archetypes, or underlying themes. While Disney may want to keep Mickey out of the public domain, it is quite happy that the following quartet is open for public use:

Pirates of the Caribbean profited by putting new faces on old character types...

1. Young hot-blooded hero from humble background with dreams of grandeur.

2. Young beautiful noblewoman with an attitude.

3. Morally ambiguous pirate with all the best lines.

4. Hairy pirate sidekick.

Disney rode the above characters to millions of dollars in movie attendance and merchandise with Pirates of the Caribbean, but if the archetypes were protected by copyright, most of that money would be going to George Lucas since he used an astonishingly similar team in Star Wars 30 years earlier.

because some character types are always popular.

Of course, Lucas himself was borrowing from other sources, but that’s the point, some things shouldn’t belong to individuals or companies, but to the public. Disney owns Jack Sparrow (Captain! Jack Sparrow) and Lucas owns Han Solo, but if you have an idea for your own morally ambiguous pirate with killer lines, go for it!

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The Information on this blog is for education purposes only. This blog is not legal advice. Reading/commenting on this blog does not create an attorney client relationship. No information obtained through interactions on this blog will be deemed confidential.
I am a licensed attorney, but I am not your attorney. If you need legal assistance in an Intellectual Property or Arts/Entertainment related area, please contact an attorney. I am licensed in the state of Washington, and can also represent people in federal copyright or trademark matters.